No. 15-474
In the
Supreme Court of the United States
ROBERT F. MCDONNELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Fourth Circuit
BRIEF FOR MEMBERS OF THE VIRGINIA
GENERAL ASSEMBLY AS AMICI CURIAE
IN SUPPORT OF PETITIONER
John S. Davis, V
Counsel of Record
Joseph R. Pope
Williams Mullen
200 South 10th St.
Richmond, VA 23218-1320
(804) 420-6000
[email protected]
Counsel for Amici Curiae
262574
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Under the federal bribery statute, Hobbs Act, and
honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951,
it is a felony to agree to take “official action” in exchange
for money, campaign contributions, or any other thing of
value. The question presented is whether “official action”
is limited to exercising actual governmental power,
threatening to exercise such power, or pressuring others
to exercise such power, and whether the jury must be so
instructed; or, if not so limited, whether the Hobbs Act
and honest-services fraud statute are unconstitutional.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. T h e Fo u r t h C i r c u i t ’s B o u n d l e s s
Definition of “Official Act” Warrants
This Court’s Review. . . . . . . . . . . . . . . . . . . . . . . . 4
II. The Fourth Circuit’s Approval of the
Government’s Expansive Theory of Liability
Threatens Legitimate Political Activity. . . . . . . . 8
III.T h e F o u r t h C i r c u i t ’ s R u l i n g
Infringes on Virginia’s Core Right of
Self-Governance. . . . . . . . . . . . . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A ppendi x A — LI ST OF M EM BER S
A N D FOR M ER M EM BERS OF T H E
VIRGINIA GENERAL ASSEMBLY . . . . . . . . . . . 1a
iii
TABLE OF CITED AUTHORITIES
Page
CASES
Atascadero State Hosp. v. Scanlon,
473 U.S. 234 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Bond v. United States,
134 S. Ct. 2077 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Citizens United v. Federal Election Comm’n,
558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Evans v. United States,
504 U.S. 255 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
Gregory v. Ashcroft,
501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Lanzetta v. New Jersey,
306 U.S. 451 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
McNally v. United States,
483 U.S. 350 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Skilling v. United States,
561 U.S. 358 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Craig,
528 F.2d 773 (7th Cir. 1976) . . . . . . . . . . . . . . . . . . . . 14
United States v. Jefferson,
674 F.3d 332 (4th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 7
iv
Cited Authorities
Page
United States v. Sun-Diamond Growers,
526 U.S. 398 (1999) . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7
United States v. Valdes,
437 F.3d 1276 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . 7
United States v. Valdes,
475 F.3d 1319 (D.C. Cir. 2007) (en banc) . . . . . . . . . . . 7
Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
STATUTES AND OTHER AUTHORITIES
U.S. Const., amend. X . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 13
18 U.S.C. § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
18 U.S.C. § 1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
18 U.S.C. § 1951(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Va. Const. Art. I, § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Va. Code § 2.2-3103(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
v
Cited Authorities
Page
Va. Code § 2.2-3103(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Va. Code § 2.2-3103(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Daniel Hays Lowenstein, For God, for Country, or
for Me, 74 Cal. L. Rev. 1479 (1986) . . . . . . . . . . . . . . 11
J o h n C a l v i n J e f f r i e s , J r. , L e g a l i t y ,
Vagueness, and the Construction of Penal
Statutes, 71 Va. L. Rev. 189 (1985) . . . . . . . . . . . . . . 11
Robert H. Jackson, The Federal Prosecutor, 31 J.
Am. Inst. of Crim. L. & Criminology 3 (1941) . . . . . 12
The Federalist No. 45 (James Madison) . . . . . . . . . . . . 12
Z. Teachout, Corruption in America 18 (2014) . . . . . . 11
1
INTEREST OF AMICI CURIAE1
Amici are current and former elected members of
the Virginia General Assembly. The Virginia General
Assembly dates from the establishment of the House of
Burgesses at Jamestown in 1619 and is heralded as the
oldest continuous law-making body in the world. Many
of the nation’s founding fathers served at one time as
members of this body, including George Washington,
Thomas Jefferson, James Madison, James Monroe,
Patrick Henry, and Richard Henry Lee.
The Virginia General Assembly is a bicameral
legislature consisting of a lower house, the House of
Delegates, and an upper house, the Senate of Virginia.
The House of Delegates is comprised of 100 members,
and the Senate of Virginia is composed of 40 members.
Each State Senator represents a district of approximately
205,000 people, and each State Delegate represents
a district of approximately 90,000 people. The chief
function of each member is to represent the interests
of his or her constituent district and propose and enact
laws that promote the general welfare of all citizens of
the Commonwealth.
1. Pursuant to Supreme Court Rule 37.2, counsel of record
for all parties received timely notice of amici curiae’s intention to
file this brief. Pursuant to Supreme Court Rule 37.6, counsel for
amici certifies that no counsel for a party authored this brief in
whole or in part, and no person other than amici, or its counsel,
made a monetary contribution intended to fund the preparation
or submission of this brief. The Government has consented to the
filing of this brief and its blanket consent is on file with the Clerk
of this Court.
2
The Virg inia General A ssembly is a “citizen
legislature.” Thus, when the body adjourns following
its annual session, members return to their districts
to resume their occupations and concurrently provide
constituent services.
Amici have a strong interest and stake in this case. The
conviction of Governor Robert McDonnell on a uniquely
broad interpretation of the federal bribery statutes
blurs the line between honest political interactions with
constituents and public corruption. It now appears that
accepting token gifts from a constituent—even in the
absence of the legislator’s promising or undertaking an
official act—may lead to federal prosecution should the
constituent request even the slightest assistance from
the legislator. Likewise, members are concerned that the
Government’s broad construction of the federal corruption
statutes criminalizes conduct not proscribed under
Virginia law. This result unnecessarily encroaches on
Virginia’s state sovereignty and right to self-governance
guaranteed by the Tenth Amendment of the United
States Constitution. It is important that the Court have
the benefit of amici’s viewpoints on these critical issues.
SUMMARY OF ARGUMENT
1. Recognizing the textual vagueness of the honestservices statute and the Hobbs Act, the Court has
consistently construed the statutes narrowly to reach
only core fraud, bribery, and extortion. Ignoring this
precedent, the Fourth Circuit endorsed a construction that
potentially criminalizes any action taken by a legislator on
behalf of a donor or benefactor. Under the Fourth Circuit’s
definition of “official acts,” a legislator who, for example,
3
attends a charity function where a meal is served may
violate federal law if he later arranges a meeting between
the charity and a state official.
2. The Fourth Circuit’s unprecedented expansion of
the federal bribery laws chills Virginia’s citizen legislators
from effectively representing their constituencies. The
limitless theory of criminal liability endorsed by the
Fourth Circuit puts at risk of federal criminal prosecution
every Virginia public official who accepts any gift and
then performs an action—no matter how unremarkable—
that may benefit a donor. If this construction of the
federal anti-corruption statutes is allowed to stand,
Virginia’s legislators will have little choice but to scale
back important interactions with constituents, especially
interactions with donors. Such a result is anathema to a
democratic society where public officials must connect
and interface with their constituents to represent their
interests effectively.
3. The Government’s capacious construction of the
anti-corruption statutes upsets the balance of power
between state and federal governments enshrined in the
Tenth Amendment. The ability to establish standards
defining the legal duties and obligations of its public
officials is at the very core of Virginia’s authority as a
coequal sovereign. The Government’s expansive use of
the honest services statute and the Hobbs Act to usurp a
core power reserved to Virginia by the Tenth Amendment
is constitutionally suspect.
4
ARGUMENT
I. The Fourth Circuit’s Boundless Definition of
“Official Act” Warrants This Court’s Review.
This Court has narrowed the scope of the honest
services fraud statute and the Hobbs Act 2 to prohibit
only the direct exchange of “official acts” for payment.
Evans v. United States, 504 U.S. 255, 268 (1992). In
other words, core bribery as historically understood.
See Skilling v. United States, 561 U.S. 358, 409 (2010)
(holding that honest-services fraud “criminalizes only the
bribe-and-kickback core of the pre-McNally case law”)
(second emphasis added)); United States v. Sun–Diamond
Growers, 526 U.S. 398, 404–05 (1999) (“Bribery requires
intent ‘to influence’ an official act or ‘to be influenced’ in
an official act . . ., there must be a quid pro quo—a specific
intent to give or receive something of value in exchange
for an official act.”) (emphasis in original).
To ensure that the federal anti-corruption laws
criminalize only that “bribe-and-kickback core,” Skilling,
561 U.S. at 409, this Court has rejected an all-actionsare-official interpretation of “official acts.” United States
v. Sun-Diamond Growers, 526 U.S. 398, 407 (1999). SunDiamond explained that performing political actions like
hosting guests at an official function or event—“while
. . . assuredly ‘official acts’ in some sense—are not ‘official
2. See 18 U.S.C. § 1346 (honest services wire fraud)
(prohibiting “scheme or artifice to defraud,” defined to include
“a scheme or artifice to deprive another of the intangible right of
honest services”); 18 U.S.C. § 1951(b)(2) (Hobbs Act) (prohibiting
“extortion” through “obtaining of property from another, with his
consent . . . under color of official right”).
5
acts’” within the meaning of the federal corruption
statutes. 526 U.S. at 407. Imposing clear limitations on
the definition of “official acts” prevents the “absurdit[y]”
of criminalizing an official’s constituent-service conduct
that is not an exercise of actual government power, for
example: “token gifts to the President based on his official
position and not linked to any identifiable act—such as
the replica jerseys given by championship sports teams
each year during ceremonial White House visits”; “a
high school principal’s gift of a school baseball cap to the
Secretary of Education, by reason of his office, on the
occasion of the latter’s visit to the school”; and “providing
a complimentary lunch for the Secretary of Agriculture
in conjunction with his speech to the farmers concerning
various matters of USDA policy.” Id. at 407.
The Fourth Circuit’s construction effectively
eliminates Sun-Diamond’s distinction between routine
political acts and “official acts.” The panel reasoned that
Sun-Diamond’s “point was that job functions of a strictly
ceremonial or educational nature will rarely, if ever”
constitute “official acts” because “strictly ceremonial or
educational” functions do not “have the purpose or effect
of exerting some influence on . . . policies.” Pet. App.
54a. Applying this reasoning, the Fourth Circuit held
that “asking a staffer to attend a briefing, questioning a
university researcher at a product launch, and directing a
policy advisor to ‘see’ him about an issue,” Pet. App. 73a,
are “official acts”—even without exercising, or pressuring
others to exercise, any governmental power.
The Fourth Circuit’s distinction, however, does
nothing to inform representatives and their constituents
of the line between lawful politics and criminal corruption.
6
Taking a Sun-Diamond example and applying the Fourth
Circuit’s reasoning proves the point. The Agriculture
Secretary—who “always has before him or in prospect
matters that affect farmers,” Sun-Diamond, 526 U.S. at
407—who eats a free lunch before speaking with farmers
about USDA policy is on the right side of the politics/
corruption divide if the speech is “strictly . . . educational.”
Pet. App. 54a. But if after his speech the Agriculture
Secretary takes questions that “have the purpose or
effect of exerting some influence on [USDA] policies” or
gives answers that have that same “purpose or effect,”
the speech has turned into a discussion that is an “official
act” under the Fourth Circuit’s construction.
The Fourth Circuit’s understanding of “official acts”
is boundless and can make criminal virtually any act
taken by a public official to assist a benefactor or donor.
It provides Virginia’s representatives and constituents
no clear line separating healthy political discourse and
public corruption. It appears, building on the SunDiamond example, that the panel attempts to draw the
distinction based entirely on the “purpose or effect” of
a representative’s or constituent’s post-speech question
or answer. Essentially, the Fourth Circuit embraced a
standard under which a public official may be found guilty
of public corruption because of the donor’s subjective
intent to influence government action. It is not even clear
that the public official must have knowledge of the donor’s
intent.
The Fourth Circuit’s ruling is entirely inconsistent
with the historical understanding of honest services fraud
and provides no clear standard to which public officials
must conform their conduct. See Evans, 504 U.S. at 268.
7
Indeed, it provides no standard at all; hence, legislators
are left with no reasonable degree of certainty as to
whether a particular act they perform on behalf of a
constituent donor will run afoul of the law. See Lanzetta
v. New Jersey, 306 U.S. 451, 453 (1939) (“No one may be
required at peril of life, liberty or property to speculate
as to the meaning of penal statutes. All are entitled to be
informed as to what the State commands or forbids.”).
In Sun-Diamond, this Court made pellucidly clear
that not all actions deemed “official” in some sense are
“official acts” within the meaning of 18 U.S.C. § 201. 526
U.S. at 407; see also United States v. Jefferson, 674 F.3d
332, 356 (4th Cir. 2012) (“[T]he bribery statute[s] do[] not
encompass every action taken in one’s official capacity.”).
This Court, as well as other courts of appeals, have
concluded that a representatives’ conduct is an “official act”
only when it involves the exercise of actual governmental
power. United States v. Valdes, 437 F.3d 1276, 1279 (D.C.
Cir. 2006), aff’d on reh’g en banc, 475 F.3d 1319 (D.C. Cir.
2007) (explaining that “official act” involves “a decision
or action directly related to an adjudication, a license
issuance (or withdrawal or modification), an investigation,
a procurement, or a policy adoption.”). Such a construction
sufficiently separates legitimate political activity—a
constituent’s supporting a representative to get a meeting
scheduled—from public corruption. See Citizens United
v. Federal Election Comm’n, 558 U.S. 310, 360 (2010)
(“Ingratiation and access . . . are not corruption.”) This
Court should review the Fourth Circuit’s failure to make
that critical distinction.
8
II. The Fourth Circuit’s Approval of the Government’s
Expansive Theory of Liability Threatens Legitimate
Political Activity.
The limitless theory of criminal liability endorsed
by the Fourth Circuit puts at risk of federal criminal
prosecution every Virginia public official who accepts
a gift and performs any action that may impart some
benefit to the donor. If this construction of the federal
anti-corruption statutes endures, Virginia’s legislators
may be forced to scale back constituent services and
other socially beneficial efforts, such as collaborating with
local business leaders to encourage business development
in their districts and providing support to charitable
organizations.
General Assembly members frequently receive meals
or other benefits from constituents, and thereafter take
actions that may further the pecuniary or nonpecuniary
interests of those same donors. 3 This is entirely proper in
a democratic society. See Citizens United, 558 U.S. at 359
(“It is well understood that a substantial and legitimate
reason, if not the only reason, to cast a vote for, or to
make a contribution to, one candidate over another is that
3. At the time of the federal crimes alleged in this case,
although Virginia law prohibited legislators from accepting gifts
in certain circumstances, violations of those laws were expressly
not “subject to criminal law penalties.” Va. Code § 2.2-3103(8)(9). Neither were members of the General Assembly prohibited
under state law from accepting honoraria for appearances or
speeches in which they provided expertise or opinions “related to
the performance of [their] official duties.” Va. Code § 2.2-3103(7)
(limiting prohibition on accepting honoraria to executive branch
officials).
9
the candidate will respond by producing those political
outcomes the supporter favors.”).
For instance, a typical senator or delegate attends
many public events every year at which a civic club or
organization provides breakfast or lunch without cost.
Likewise, a business supporting a charitable cause may
invite a member of the General Assembly to attend a
major fund-raising event and sit at a featured table as its
guest. In both situations, the General Assembly member
may later have to consider a legislative matter that could
either help or harm the entity that provided the benefit.
For nearly 400 years in Virginia, no one ever suggested
that these or similarly innocuous actions might constitute
a criminal offense. But the boundless legal standard
applied by the Fourth Circuit does just that. For instance,
under the Fourth Circuit’s construction a legislator who
receives a constituent’s gift of lunch or dinner could be in
jeopardy of federal criminal prosecution for assisting the
constituent by setting up a meeting with a government
employee, helping the constituent obtain unemployment
compensation, helping the person resolve problems with
the DMV, or calling VDOT after a snowstorm to inform
it that the constituent’s street is not plowed.
The Fourth Circuit’s unprecedented broadening of
the federal bribery laws is particularly concerning to
Virginia’s citizen legislators. Most hold full-time jobs, 4
4. This arrangement is viewed as eminently desirable. “[T]hat
the members [of the legislature] may be restrained from oppression,
by feeling and participating the burthens of the people, they should,
at fixed periods, be reduced to a private station [and] return into that
body from which they were originally taken.” Va. Const. Art. I, § 5.
10
and during the course of their jobs they may receive
legitimate benefits, such as meals and token gifts. A
delegate who is also a contractor who builds roads, for
example, may attend an annual picnic hosted by one of
his company’s largest subcontractors. Weeks after the
event, the subcontractor’s CEO may reach out to the
delegate about a completely unrelated legislative matter.
Again, until Governor McDonnell’s trial and conviction,
no Virginian could have foreseen that federal authorities
might assign criminal liability in such a case.
Indeed, in some cases the temporal link between a
gift or benefit to a state legislator and a potential official
act may be immediate and obvious, but no one—at least
until United States v. McDonnell—would have thought
it would lead to a federal felony charge. A bankers’
association, for example, might invite a senator to attend
a luncheon where it presents detailed lists of bills that the
association favors and opposes. Or a major charity might
host a delegate at a breakfast where it pointedly describes
the charity’s top legislative priorities in the upcoming
session. At both events, the legislator receives a benefit
from a constituent at precisely the same time that his or
her legislative assistance is sought. Under the traditional
understanding of honest services fraud, at neither event
has a crime been committed. Yet, as defined by the Fourth
Circuit in United States v. McDonnell, federal law raises
the specter of criminal prosecution in both instances.
As noted by one prominent legal scholar,
Part of designing a political system is separating
gifts from bribes—that is, defining what gifts
ought to be categorized as corrupting. As
11
Daniel Hays Lowenstein argued thirty years
ago, a concept of corruption or bribery ‘means
identifying as immoral or criminal a subset of
transactions and relationships within a set that,
generally speaking, is fundamentally beneficial
to mankind, both functionally and intrinsically.’
Z. Teachout, Corruption in America 18 (2014) (quoting
Daniel Hays Lowenstein, For God, for Country, or for Me,
74 Cal. L. Rev. 1479, 1481 (1986)). The theory espoused in
this case makes it impossible for legislators to distinguish
between gift and bribe. In fact, under the Fourth Circuit’s
boundless standard, what is “immoral or criminal”
and what is “fundamentally beneficial to mankind” is a
question left to the discretion of federal prosecutors.
This is a troubling result given the extraordinary
power enjoyed by federal prosecutors, and the concomitant
dangers of selective and arbitrary prosecutions. See
John Calvin Jeffries, Jr., Legality, Vagueness, and the
Construction of Penal Statutes, 71 Va. L. Rev. 189, 197
(1985) (“Prosecutors in this country have enormous
discretion, and their decisions are largely unconstrained
by law.”). As Justice Robert Jackson warned decades ago:
If the prosecutor is obliged to choose his cases,
it follows that he can choose his defendants.
Therein is the most dangerous power of the
prosecutor: that he will pick people that he
thinks he should get, rather than pick cases that
need to be prosecuted. With the law books filled
with a great assortment of crimes, a prosecutor
stands a fair chance of finding at least a
technical violation of some act on the part of
12
almost anyone. In such a case . . . it is a question
of picking the man and then searching the law
books, or putting investigators to work, to pin
some offense on him. It is in this realm—in
which the prosecutor picks some person whom
he dislikes or desires to embarrass, or selects
some group of unpopular persons and then looks
for an offense, that the greatest danger of abuse
of prosecuting power lies.
Robert H. Jackson, The Federal Prosecutor, 31 J. Am.
Inst. of Crim. L. & Criminology 3, 5 (1941). This Court
should take this opportunity to flatly reject the Fourth
Circuit’s expansive reading of the federal bribery laws and
restore clear lines between lawful constituent interactions
and schemes involving bribes or kickbacks.
III.The Fourth Circuit’s Ruling Infringes on Virginia’s
Core Right of Self-Governance.
“As every schoolchild learns, our Constitution
establishes a system of dual sovereignty between the
States and the Federal Government.” Gregory v. Ashcroft,
501 U.S. 452, 457 (1991). Federalism is a fundamental
structural means of securing core democratic values that
guarantees “our fundamental liberties” and serves as a
check on abuses of centralized federal power. Id. at 458.
Hence, the powers afforded the federal government are
limited, while “[t]he powers reserved to the several States
. . . extend to all the objects which, in the ordinary course
of affairs, concern the lives, liberties, and properties of
the people, and the internal order, improvement, and
prosperity of the State.” The Federalist No. 45 (James
Madison). The principles of federalism described by
13
Madison form the foundation of the Tenth Amendment,
which provides, “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the
people.” U.S. Const., amend. X.
As part of its powers, a state is entitled to establish
rules governing the conduct and qualifications of its
elected officials.
Through the structure of its government, and
the character of those who exercise government
authority, a State defines itself as a sovereign.
It is obviously essential to the independence of
the States, and to their peace and tranquility,
that their power to prescribe the qualifications
of their own officers . . . should be exclusive, and
free from external interference, except so far
as plainly provided by the Constitution of the
United States.
Gregory, 501 U.S. at 457.
Federal interference with state governance upsets
the delicate balance between federal and state power.
Thus, “it is incumbent upon the federal courts to be
certain of Congress’ intent before finding that federal
law overrides this balance.” Gregory, 501 U.S. at 460;
accord Bond v. United States, 134 S. Ct. 2077, 2089
(2014) (“Perhaps the clearest example of traditional state
authority is the punishment of local criminal activity.”).
This Court explained, “[I]f Congress intends to alter the
usual constitutional balance between the States and the
Federal Government, it must make its intention to do
14
so unmistakably clear in the language of the statute.”
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242
(1985). Put differently, but equivalently, “Congress should
make its intention ‘clear and manifest’ if it intends to
pre-empt the historic powers of the States . . . .” Will v.
Michigan Dept. of State Police, 491 U.S. 58, 65, (1989);
see also United States v. Craig, 528 F.2d 773, 779 (7th
Cir. 1976) (“[T]he primary responsibility for ferreting
out [local] political corruption must rest, until Congress
[properly] directs otherwise, with the State, the political
unit most directly involved.”).
Congress has not through the language of the federal
anti-corruption statutes made “clear and manifest” its
intention to preempt Virginia’s historic role in setting
standards to govern the conduct of its most important
public officials. This is in part why this Court has rejected
overly broad constructions of the federal bribery laws that
would improperly “involve[] the Federal Government in
setting standards of disclosure and good government for
local and state officials.” McNally v. United States, 483
U.S. 350, 360 (1987).
While the anti-corruption statutes, as construed
by this Court, make manifest that they reach core
bribery and kick-back schemes, they do not express a
Congressional intention of criminalizing the range of acts
falling within the scope of the expansive theory unveiled
by the Government, and approved by the Fourth Circuit,
in United States v. McDonnell. That expansion warrants
this Court’s review.
15
CONCLUSION
For the foregoing reasons, the Court should grant the
petition for writ of certiorari.
Respectfully submitted.
John S. Davis, V
Counsel of Record
Joseph R. Pope
Williams Mullen
200 South 10th St.
Richmond, VA 23218-1320
(804) 420-6000
[email protected]
Counsel for Amici Curiae
November 16, 2015
APPENDIX
1a
Appendix A —Appendix
LIST OFAMEMBERS AND
FORMER MEMBERS OF THE VIRGINIA
GENERAL ASSEMBLY
Senate
Richard H. Black
Charles W. Carrico
A. Benton Chafin, Jr.
Charles J. Colgan
John A. Cosgrove, Jr.
Thomas A. Garrett, Jr.
Emmett W. Hanger
David W. Marsden
Stephen H. “Steve” Martin
Stephen D. Newman
Thomas K. Norment
Bryce E. Reeves
Frank M. Ruff, Jr.
William M. Stanley, Jr.
2a
Appendix A
House of Delegates cont.
Kenneth W. Stolle (1992-2010)
Walter A. Stosch
Frank W. Wagner
John C. Watkins
House of Delegates
Leslie R. Adams
David B. Albo
Richard L. “Rich” Anderson
Ralph L. “Bill” Axselle, Jr. (1974-1990)
Richard P. Bell
Jeffrey L. Campbell
Mark L. Cole
John A. Cox (2010-2014)
M. Kirkland Cox
Glenn R. Davis
3a
Appendix A
House of Delegates cont.
William R. DeSteph, Jr.
Thelma D. Drake (1996-2005)
C. Matthew Farris
T. Scott Garrett
Thomas A. “Tag” Greason
Christopher T. Head
M. Keith Hodges
Speaker William J. Howell
Riley E. Ingram
Johnny S. Joannou
William R. “Bill” Janis (2002-2012)
Terry G. Kilgore
Barry D. Knight
James A. “Jay” Leftwich, Jr.
L. Scott Lingamfelter
4a
Appendix A
House of Delegates cont.
Daniel W. Marshall, III
J. Randall Minchew
James W. (“Will”) Morefield
Richard L. “Rick” Morris
David A. Nutter (2002-2012)
John M. O’Bannon
Charles D. Poindexter
David I. Ramadan
Thomas D. Rust
Christopher B. “Chris” Saxman (2002-2010)
Edward T. Scott
Christopher P. Stolle
Scott A. Surovell (Senator-Elect for the 36th District)
Terrie L. Suit (2000-2008)
Scott W. Taylor
5a
Appendix A
House of Delegates cont.
Ronald A. Villanueva
Michael B. “Mike” Watson (2012-2014)
Michael J. Webert
Thomas C. “Tommy” Wright, Jr.
Joseph R. Yost